Responsible Transplantation v. F.D.A., Civil Action No.: 00-2849 (RMU).
| Decision Date | 05 September 2006 |
| Docket Number | Civil Action No.: 00-2849 (RMU). |
| Citation | 448 F.Supp.2d 146 |
| Parties | CAMPAIGN FOR RESPONSIBLE TRANSPLANTATION, Plaintiff, v. UNITED STATES FOOD AND DRUG ADMINISTRATION et al., Defendants.<SMALL><SUP>1</SUP></SMALL> |
| Court | U.S. District Court — District of Columbia |
Amy R. Atwood, Western Environmental Law Center, Eugene, OR, Jonathan
Russell Lovvorn, The Humane Society of the United States, Katherine A. Meyer, Howard M. Crystal, Meyer Glitzenstein & Crystal, Washington, DC, for Plaintiff.
Brian J. Sonfield, Export—Import Bank of the United States, Office of the General Counsel, Alan Burch, U.S. Attorney's Office, Washington, DC, for Defendants.
The plaintiff, Campaign for Responsible Transplantation ("CRT"), is a non-profit organization dedicated to increasing awareness of the dangers of a cellular treatment therapy called xenotransplantation. CRT brought suit to compel defendant Food and Drug Administration ("FDA"), to disclose documents related to clinical trials involving xenotransplantation. During the course of the litigation, the defendant voluntarily released some documents and the court ruled that the defendant was justified in withholding the documents it did not release. The plaintiff now moves for attorney's fees pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(a)(4)(E)(a). The court denies the plaintiffs motion for attorney's fees because the plaintiff did not substantially prevail on the merits of its claims.
Xenotransplantation ("XTP") involves the implantation of animal tissues, cells and organs into human beings for treatment of human diseases. Mem. Op. (Jul. 23, 2001) at 1. The FDA regulates XTP products as "investigational new drugs" ("INDs"). Id. at 2. The plaintiff, concerned about potential public health risks of XTP products, submitted a written FOIA request for records related to thirty-five XTP INDs on March 9, 2000. Mem. Op. (Sept. 3, 2002) at 3. The FDA acknowledged receipt of the request and indicated it would respond to the request "as soon as possible." Id. When the plaintiff did not receive a response to its FOIA request by August 2, 2000, the plaintiff filed an appeal with the FDA. Id. After the defendant failed to respond to the plaintiff's appeal, it filed suit in this court on November 27, 2000 to compel immediate disclosure of the requested records. Id. After commencing suit, the plaintiff narrowed its original FOIA request to include only documents generated by the defendant and documents concerning clinical trials related to nineteen of the thirty-five INDs. Mem. Op. (Sept. 24, 2004) at 3.
The plaintiff, in an effort to further narrow the scope of the litigation, moved for Vaughn indices2 describing documents related to all nineteen INDs. Mem. Op. (July 23, 2001) at 3-4. The defendant countered that such a request would take an estimated two years to complete because it involved review of about 240,000 pages of documents. Id. at 6. In its cross-motion, the defendant asked the court to instead allow it to produce a sample index with respect to one of the nineteen INDs. Id. at 6-7. The defendant supported its motion by noting that the "same types of FDA-generated documents are found in every xenotransplantation IND file, and that they would assert the same exemptions for documents in the indexed IND as it would for the same types of documents in the other INDs." Id. at 8. The court's 2001 opinion denied the plaintiff's motion for Vaughn indices for all INDs, and instead granted the FDA's motion to produce a sample Vaughn index for one IND ("IND G"). Id. at 7. The FDA produced a sample Vaughn index for IND G on September 4, 2001. Pl.'s Mot. for Summ. J. (Jan. 15, 2002) at 22. The court later used the sample index as the basis for a ruling covering all of the INDs subject to the plaintiff's FOIA request. Pl.'s Mot. to Enforce Sept. 24, 2004 Order. On October 15, 2001, the FDA also released responsive documents that it did not plan to exempt from disclosure. Pl.'s Mot. for Summ. J. (Jan. 15, 2002) at 23.
After the FDA produced the sample index and released some documents related to the sample IND, both parties moved for summary judgment over the IND G documents that the FDA continued to withhold. Mem. Op. (Sept. 24, 2004) at 3. The plaintiff moved for the immediate release of all IND G documents that the FDA claimed were exempt. Pl.'s Mot. for Summ. J. (Jan. 15, 2002). The defendant, conversely, moved the court for a ruling that the withheld documents were exempt from disclosure. Def.'s Mot. for Summ. J. (Mar. 29, 2002). On September 3, 2002, the court granted in part and denied in part both summary judgment motions, concluding that the FDA conducted an adequate search, but that its sample Vaughn index was inadequate to justify the withholdings. Mem. Op. (Sept. 3, 2002) at 16. Rather than rule on the propriety of the defendant's decision to withhold documents by relying on an inadequate Vaughn index, the court postponed judgment on the merits of the parties' claims and ordered the FDA produce a revised sample Vaughn index. Id.
While preparing its revised Vaughn index for IND G, the FDA released additional documents that it did not plan to withhold. After the FDA produced its revised sample Vaughn index, the parties filed renewed cross-motions for summary judgment. Mem. Op. (Sept. 24, 2004) at 3. On September 24, 2004, the court denied the plaintiff's motion for immediate release of withheld documents and instead granted the defendant's motion, holding that the FDA lawfully withheld contested documents pursuant to FOIA exemptions. Id. at 23. Because the Vaughn index and the court's ruling related only to the sample IND G, the court also ordered the FDA to release all non-exempt documents related to the other eighteen INDs. Id. at 22. Months later, after the defendant had not released the documents with respect to the other eighteen INDs, the plaintiff moved to enforce the court's order. The court denied the plaintiff's request, stating that "[t]he parties' submissions demonstrate that they have not adequately communicated with each other ... [and] the court is confident that the parties do not wish to further burden the court with the task of unraveling unnecessary disputes." Order (June 3, 2005). The court now turns to the plaintiff's motion for attorney fees and costs.
Pursuant to 5 U.S.C. § 552(a)(4)(E)(a), the court may assess "reasonable attorney fees and other litigation costs reasonably incurred in any case ... in which the complainant has substantially prevailed."3 To award attorney's fees under FOIA, a court must undertake a two-step inquiry. First, the court must determine whether the claimant is eligible for attorney's fees. Pyramid Lake Paiute Tribe v. U.S. Dep't of Justice, 750 F.2d 117, 119 (D.C.Cir.1984). To be eligible for fees, the claimant must "substantially prevail" in the underlying FOIA litigation. Id. Second, the court must determine that the plaintiff is "entitled" to an award of attorney's fees and costs. Md. Dep't of Human Res. v. Sullivan, 738 F.Supp. 555, 563 (D.D.C.1990) (citing Cuneo v. Rumsfekl, 553 F.2d 1360, 1365 (D.C.Cir.1977)). In deciding whether a claimant is entitled to an award of attorney's fees and costs, a court analyzes four factors: "(1) the benefit to the public, if any, derived from the case; (2) the commercial benefit to the complainant; (3) the nature of the complainant's interest in the records sought; and (4) whether the government's withholding of the records had a reasonable basis in law." Cuneo, 553 F.2d at 1364. The second and third factors "are closely related and are often evaluated together." Sullivan, 738 F.Supp. at 563 n. 11 (citing Fenster v. Brown, 617 F.2d 740, 743 (D.C.Cir.1979)). "None of these factors are dispositive," Piper v. U.S. Dep't of Justice, 339 F.Supp.2d 13, 20 (D.D.C.2004), and "[e]ntitlement is at the discretion of the district court." Sullivan, 738 F.Supp. at 563.
To be eligible for attorney's fees, a party must "substantially prevail" in his suit. Oil, Chem. and Atomic Workers International Union, AFL-CIO v. Dep't of Energy, 288 F.3d 452, 456-57 (D.C.Cir.2002) ("OCAW") citing Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep't of Health and Human Res., 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Here, the plaintiff claims it substantially prevailed because: (1) the FDA released thousands of requested documents after the court ordered it to produce a revised Vaughn index for IND G; (2) the court's September 3, 2002, order stated that the defendant's Vaughn index was inadequate; and (3) the court's September 24, 2004 order required the FDA to release documents. Each of these arguments is discussed in turn below.
The plaintiff argues it obtained judicial relief because the defendant released thousands of requested documents after the court issued its order requiring the FDA to submit a revised Vaughn index for IND G. Pl.'s Mot. for Attorney's Fees ("Pl.'s Mot.") at 11. The defendant counters that the plaintiff did not substantially prevail because it released the requested documents voluntarily.4 Def.'s Opp'n to Mot. for Attorney's Fees ("Def.'s Opp'n.") at 6-7. For a party to "prevail," there must be a "court-ordered change in the legal relationship between the parties." Buckhannon Bd. & Care Home, Inc., 532 U.S. at 604, 121 S.Ct. 1835 (internal citation omitted). Stated differently, a party that achieved the desired result because the lawsuit brought about a "voluntary change in the defendant's behavior" is not a prevailing party. Id. at 605, 121 S.Ct. 1835; OCAW, 288...
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Campaign for Responsible Transplantation v. Fda
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